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Home | Blog | Now that Roy Moore Won, Is his "Lawlessness" a Problem?

Now that Roy Moore Won, Is his "Lawlessness" a Problem?

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Tags Legal System

09/27/2017

Roy Moore has won the run-off in the Republican primary for the US Senate. This virtually guarantees that Moore will be the next US Senator from Alabama, replacing Jeff Sessions, who is now US Attorney General. Moore will replace Luther Strange, who was appointed as temporary Senator until a special election could be conducted. 

Strange had the endorsement of both Donald Trump and Republican establishment fixtures such as Mitch McConnell. 

Moore isn't getting any points for running against Trump's preferred candidate, though. Immediately following Moore's election, media leftists set to work denouncing Moore for being "Trumpian," "extreme," "a bigot" and all the usual epithets directed at Trump during the 2016 campaign. 

A look at social media right now, however, makes it apparent that the memo has gone out — figuratively speaking — that Moore critics are to refer to his "lawlessness" as a tactic in discrediting him. Matt Yglesias has led the charge on this: 

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"Roy Moore is a lawless bigot," Yglesias writes, "who defies clearly valid court orders."

The lawlessness angle, apparently, is the chosen attack of the moment, as reflected in comments of other hard-left types such as MSNBC pundit Chris Hayes who concluded Moore is opposed to "law and order" and "the rule of law." 

I don't have strong feelings about Roy Moore. The fact that Mitch McConnell endorsed Moore's opponents certainly makes him look better. But when it comes to federal policies, we won't know how he'll act as a Senator until he's a Senator. On the negative side, his policies appear to be rather run-of-the-mill Republican. If he's a pro-Drug War fanatic like Jeff Sessions — or in favor of foreign policy like that of GOP Senators Tom Cotton and Lindsey Graham — then Moore will be a big problem indeed.

But note that the first thing that comes to the mind of Matt Yglesias isn't a weighty matter like the Drug War, or regular wars. No, the main problem is that Roy Moore is "lawless" for not carrying out "clearly valid court orders" from a federal judge.

Moore's specific "crime" it seems, is not complying with federal orders to remove a Ten-Commandments monument from a court house, and he also refused to comply with federal orders to approve same-sex marriages.

In these cases, it seems apparent that Moore — in his position as an Alabama judge — was attempting to reflect what he saw as the desires of most of his constituents, and to protect state law from intrusions by the federal government. Moore apparently concluded that the "valid court orders" in question were in violation of the state constitution, and unwarranted under the US Constitution. In this respect, Moore is no different from many nineteenth-century officials who flaunted the fugitive slave acts, or current officials who ignore federal immigration orders. 

Now, if Moore's critics were honest, they'd just come right out and say they don't like Moore's positions because he stands opposed to their preferred ideology. In matters like religion and same-sex marriage, Moore has chosen to side with his populist conservative base in recent years, rather than cave to pressure from Washington, DC. This is the real source of the enmity directed at him. 

Obviously, it's perfectly fair to criticize Moore for his social-policy positions, and claim he's wrong. Resorting to the "lawlessness" claim, however, is the usual dishonest ploy used to sidestep the moral argument and instead claim that it's inherently good to blindly take orders from federal judges and other bureaucrats. 

Surely, Yglesias doesn't think that complying with "valid court orders" is always a good thing. After all, federal courts were nearly uniform in their support of the fugitive slave acts prior to the Civil War. If any politician refused to submit to say, edicts issued  under the Dred Scott decision, should he have been denounced as "lawless"? That was certainly the position that the slavemasters took, although I'm not persuaded of the righteousness of their cause. 

Moreover, in the lead up to the Supreme Court's pro-concentration-camp decision in Korematsu, federal courts ordered the arrest and imprisonment of Japanese-Americans who refused to comply with federal internment orders. Were those "valid" federal laws to be blindly complied with? 

More recently, federal courts have been complicit in empowering both local and federal police agencies in seizing private property — via asset forfeiture laws — without due process. Should federal orders be treated as gospel truth in those cases? 

There's nothing wrong with "lawlessness" when the law is wrong, and employing the lawlessness charge as evidence of dastardly intentions is, in most cases, just an attempt to appeal to existing biases and emotional tribalism. 

Conservatives, of course, are guilty of the same thing, when they complain about the alleged lawlessness of sanctuary cities, but then support politicians like Moore and Sheriff Joe Arpaio, who has also refused compliance with orders from federal officials. 

The "Rule of Law" Canard

In any case, one should always become suspicious whenever anyone appeals to the "rule of law" to gain political support. The tactic usually means one is trying to avoid important moral questions, and is instead substituting obedience in place of critical thinking. Resorting to the "it's against the law" argument is a sign that one knows few people care about the reasoning behind a law, or its moral value. Instead, the user of the tactic is simply claiming that we should all comply with a law, no matter how monstrous or stupid it apparently is. 

The tactic works because many people have been trained to believe the myth that "law" can be neutral. Robert Taylor explains

As a myth, however, the concept of the rule of law is both powerful and dangerous. Its power derives from its great emotive appeal. The rule of law suggests an absence of arbitrariness, an absence of the worst abuses of tyranny. The image presented by the slogan “America is a government of laws and not people” is one of fair and impartial rule rather than subjugation to human whim. This is an image that can command both the allegiance and affection of the citizenry. After all, who wouldn’t be in favor of the rule of law if the only alternative were arbitrary rule? But this image is also the source of the myth’s danger. For if citizens really believe that they are being governed by fair and impartial rules and that the only alternative is subjection to personal rule, they will be much more likely to support the state as it progressively curtails their freedom.

In fact, "law," as we use it today, is largely formed by the whims of ideologues. Taylor continues: 

The law, then, is not a neutral body of rules to help keep order and govern society; it is merely an opinion with a gun. Whenever the state is in charge of anything, the outcomes, process, and administration are always political in nature. There can never be a system of definite, consistent rules that produce determinate results because these laws, no matter how they are written, will always be subjected to the biases, prejudices, and discrimination of those who interpret and enforce them...

When the law is under the dominion of a top-down, coercive state it is transformed from a system of governance to a body of expropriation. Whether through the use of logic or emotional appeals, whoever wields the state apparatus says what the law is and they will dispense their armed enforcers to make sure their law is fulfilled.

So, what's we can hardly conclude that "lawlessness" is necessarily a bad thing. In fact, it often means opposition to immoral acts and abuses of political power. 

Roy Moore may be a bad guy with a bad political ideology — although I'm skeptical that he's measurably worse that Luther Strange or anyone else Moore might run against. 

But, in this case, it's important to note that the political charge of "lawlessness" should convince no thinking observer of anything. Such claims should be recognized largely as the refuge of hypocrites and authoritarians, including those who are apparently interested with obedience for federal edicts Moore's enemies happen to like. 

Ryan McMaken (@ryanmcmaken) is the editor of Mises Wire and The Austrian. Send him your article submissions, but read article guidelines first. Ryan has degrees in economics and political science from the University of Colorado, and was the economist for the Colorado Division of Housing from 2009 to 2014. He is the author of Commie Cowboys: The Bourgeoisie and the Nation-State in the Western Genre.

Note: The views expressed on Mises.org are not necessarily those of the Mises Institute.
Image source: Golden State Times, https://www.youtube.com/watch?v=Xmkn3u9KYZg
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